[ANALYSIS] Understanding the Ressa-Santos convictions

 

On June 15, 2020, the country saw the conviction of Rappler CEO and Executive Editor Maria Ressa and former researcher-writer Reynaldo Santos, Jr for cyber libel penalized under the Cybercrime Prevention Act of 2012 – the first of probably many more to come.

Ressa’s and Rappler’s supporters rally that it is the death of democracy. Rappler itself issued a bold statement saying, “The decision today marks not the rule of law, but the rule of law twisted to suit the interests of those in power who connive to satisfy their mutually beneficial personal and political agenda.”

Others who sound to be more sympathetic to a businessman’s private interest, rather than knowing matters of public concern through critical reporting, say that justice had been served.

How can an offense deemed to be so minor such as libel and a right so fundamental such as the freedom of speech and of the press stir so much conflict and confusion? Are they not supposed to have, in a way, already settled into the bedrock of our society’s norms and collective consciousness?

Like a series of dominos for children, some sort of an intricate chain reaction project for engineers, or a slippery slope for philosophers, we are now faced with the convictions of Maria Ressa and Rey Santos.

Courts fall

From the convictions, the seemingly immediate cause is Manila Regional Trial Court – Branch 46 led by Judge Rainelda Estacio-Montesa. (READ: DOCUMENT: Decision on cyber libel conviction of Maria Ressa et al)

Various groups and individuals immediately deplored the judgment rendered by Judge Estacio-Montesa. She said in her decision, “The right to free speech and freedom of the press cannot and should not be used as a shield against accountability.” We reiterate that while the conviction seems to demand accountability from journalists on a supposed offense of cyber libel, the very decision itself removed the public’s opportunity to demand accountability from the greater and more powerful authority of government through the courageous press.

By convicting and further imposing a punishment of imprisonment, despite the Supreme Court’s 2008 guidance on the imposition of penalties for libel that “[j]udges concerned may […] determine whether the imposition of a fine alone would best serve the interests of justice or whether forbearing to impose imprisonment would depreciate the seriousness of the offense, work violence on the social order, or otherwise be contrary to the imperative of justice,” the judgment became questionable in the eyes of the public.

We believe that judicial decisions must not only be based on a prudent understanding of the facts and of the law, but they must have unimpeachable integrity, how unpopular they may be, such that they do not need a stretch of legal acrobatics to be acceptable. Alas, they result in what we see now in Ressa’s case like what we saw in the cases of the Sereno ouster, Marcos burial, and De Lima detention. (READ: LOOK: Maria Ressa, Leila de Lima, Maria Lourdes Sereno star in exhibit on courage)

Following the arguably unconstitutional judgment, a surge in condemnations towards Judge Estacio-Montesa herself triggered the Philippine Judges Association to issue a statement that “[t]he attacks on the judiciary are so vicious that (these) may lead to the public losing faith and respect in our judicial system.”

We hear the judges’ pleas, but we stand by the words of Justice Malcolm in the century-old case of US v Bustos, “The guaranties of a free speech and a free press include the right to criticize judicial conduct. The administration of the law is a matter of vital public concern. Whether the law is wisely or badly enforced is, therefore, a fit subject for proper comment. If the people cannot criticize a justice of the peace or a judge the same as any other public officer, public opinion will be effectively muzzled.”

With motions for reconsideration and appeals, if in any case the conviction is upheld by Judge Estacio-Montesa, there is still chance to undo the most immediate injustice.

Duterte flails

While the judiciary claims independence as it mechanically made a decision on the facts of the case and law applicable to it, the Duterte administration refuses to admit its hand in this case by diverting our attention to Wilfredo Keng, the private complainant, who seeks liability from Rappler for malicious publication.

We know that this is lip service and belief in such a tale is misplaced. Barely a year into his term, Duterte in front of the whole nation claimed that Rappler violates the 1987 Constitution. Starting then, Rappler earned the President’s ire and obviously became his target. After Rappler exposed then SAP now Senator Bong Go’s interference with the PH Navy’s procurement, journalist Pia Ranada was then barred entry into Malacañan. Maria Ressa has since been arrested multiple times.

It is not too remote to even think of the immense pressure brought about by Duterte’s acts on the Justice Department in prosecuting the case against Ressa.

The moment Duterte decided to repress dissent by attempting to silence Rappler, he, like the judiciary, caused these attacks against Rappler.

Congress fails

While the judiciary places the law as a shield to its complicity with the eventual degradation of civil liberties, the executive uses it as a justification for its witch hunt against dissenters. We now turn to Congress, where the law originated.

Notably, the leaders of Congress were eerily silent as to the conviction, primarily perhaps it does not concern them, but is that really the case? While they think that they could not be held to account, we submit that the enactment of the cybercrime law in 2012 haunts us today and will continue to haunt us in the future – if not repealed nor amended.

With Congress (save for some unsuccessful bills intended to decriminalize libel) conveniently neglecting the possible repercussions of the state’s policy on libel to the constitutional freedoms and to the human rights recognized by international law (as will be discussed in the next part of the series), it failed to act – and in fact slept on their sacred duty. This may also be likened as to how they slept on ABS-CBN’s franchise renewal. And look at its audacity to enact a law, the Anti-Terrorism Act of 2020, that will further endanger our people’s rights to extents more unimaginable than what this cybercrime law brought us.

Falling dominoes

These convictions are a result of years of complacency and misguided policy direction. A good analogy is that of dominos falling. Our democracy is on the brink, the edge. We must push back. – Rappler.com

Tony La Viña teaches law and is former dean of the Ateneo School of Government.

Jayvy R. Gamboa is a student at the University of the Philippines College of Law and an advocate of youth formation.